Tuesday, March 28, 2006


A few days ago the United States Supreme Court ruled in an important case that changed the law involving consent to search a dwelling by police officers. Newly appointed Chief Justice Roberts found himself in dissent with the majority. see Randolph v. Scott http://www.supremecourtus.gov/

In the case two co-owners lived in a house one giving consent to search the dwelling and the other vehemently objecting to any search. The police searched and found cocaine without a warrant something your favorite Clearwater Criminal Defense Attorney finds reprehensible as you might too.

Previously the law seemed settled that either party could give valid consent for a search. However, the majority of the court found that a typical person would not go into a home where anyone living there, especially an owner, objected to entry. The court noted that either occupant in real life situations, for example, who should come to dinner, could veto visitors.

This Supreme Court is placed in a unique historical position of balancing and restricting an administration that has lost sight of the fact that liberties are only protected by rights. At a time when the executive branch of government is curtailing rights, this narrow decision slightly limits the government's ability to search without a warrant in Clearwater, Largo, St. Petersburg and Tampa Bay, Florida; where deputies lie to get into homes to look for evidence of crime,  deputies use secret video evidence of shoppers and a Big Brother Government tracks our movements using GPS.

Since his arrival Chief Justice Roberts attempted to force a solemn truce of unity among the disparate justices in a time of upheavel for the court. But sadly Justice Roberts is not the leader to protect our rights nor a man apt to bite the hand that fed him.

This case ended that brief unreal unity and should give pause to any true libertarian. The Chief Justice wrote that the majority was going beyond the constitution to grant Americans this new right of not allowing our government to search one's own home without probable cause, without a search warrant.

Yet his literal reading ignores the fact that warrantless searches are explicitly protected by the Constitution in direct language, if one was a true libertarian or strict constructionist as the conservatives claim to be, then all warrantless searches are beyond the Constitution and every search should require a warrant.

A Clearwater Criminal Defense Lawyer hopes the court will rise and take hold of the historic moment to balance the administration's attacks on the rights of Americans, but if so, it will do so with its chief justice dissenting all of the way ignoring the very Constitution he claims to protect.

Wednesday, March 15, 2006


One might think that a search warrant is always required to search a home in Tampa Bay, Florida or to search a vehicle in Tampa Bay, Floida. But over the years courts and legislatures have carved a large number of exceptions to this general rule despite objections from Clearwater Criminal Defense Lawyers.

For example, if an officer is given consent to search, or if an officer observes illicit objects "in plain view" or if an officer fears for his or her safety or if the officer is in hot pursuit of a Defendant incident to a crime then no search warrant may be necessary.

An officer is under no requirment to be honest with a citizen and part of effective police tactics often entails giving an individual a false impression of the legal status of a particular search. A judge will not throw out a case based on mere misrepresentation unless it is egregious or outrageous.

Many years ago while I was a green prosecutor, fresh and newly mented out of law school, a friendly officer who was fairly new to Florida but had earlier been a cop in New Jersey for a number of years, laughingly told me about a Defendant who was so verbally abusive upon arrest for something trivial that he wished he'd had a "throw bag."

"Throw bag?" I asked (when I said I was green, I meant it).

He looked at me in disbelief that anyone could be so naive, "That's a bag of meth or crack cocaine we'd carry up North to throw down on a guy whose causing trouble."

The phrase they'd carry up North, with its past tense double denial of not me and not here, but it was the other officers and it was only in the North, led a Clearwater Criminal Defense Attorney to know that throw bags are a real threat to false convictions in Clearwater, Largo, St. Petersburg and Tampa Bay, Florida.

And recent Miami convictions of a number of police officers showed that the cops had thrown down a firearm at a crime scene to falsely prove that they'd shot a man in self-defense. The man they shot was actually unarmed. How did the case unravel? The firearm the police threw down had been taken from the police department's own evidence room. Search and Seizure, fake subpoenas and lack of warrants be damned, all that's really needed to convict an innocent man is one dishonest law enforcement officer.

Monday, March 13, 2006


Remember the eternal bliss of summer vacation when you were a child, wearing your new yellow rain hat even on the brightest sunny day in Tampa Bay Florida because you were so proud of it - your favorite Clearwater Criminal Defense Lawyer doesn't remember that either but why should I be expected to remember something from your life as I can hardly recall mine? For your grandmother that summer was a prelude to her lonely gray winter ending as quickly as the bowl of melting ice cream you shared with her (make mine an Italian chocholate macadamia nut, please).

The passage of time is the very measure of our lives. As we age the perception of time passing speeds for each of us as the taper of our lives burns ever faster.

Since people at different times in their lives perceive the passage of time differently, doesn't that imply that say, a five year sentence of jail to a twenty year old man is, if not harsher, certainly felt subjectively as being in actual time longer, than the same five year sentence given to the sixty year old convicted of a white collar crime, scheme to defraud or embezzlement (who happily, unlike the twenty year old, can actually pay me)?

But what if the twenty year old is a new mother? How will those five years be felt by her and by her innocent child? And wouldn't incarceration affect a youthful offender or juvenile much differently than someone of another age. Yet the courts tend to treat everyone alike especially with Florida Sentencing Guidelines and Florida Sentencing Scoresheets controlling what Judge's will sentence and reducing judge's discretion. Shouldn't a judge be able at sentencing to take these factors into account? Don't we want our judges to have the ability to occasionally seek out the best solutions for each Defendant?

But today in St. Petersburg, Clearwater, Largo and Tampa Bay, Florida when a judge sentences a Defendant most of the decision-making process with which the judge ought to be entrusted has already been declared out of bounds by Florida Statutes and Federal law, that have made honest, fair, impartial judges subservient to minimum mandatory sentences, mathematical tables and immoveable sentencing guidelines.

Any civilized and rational legal system that even Clearwater Criminal Defense Attorneys could cherish, would allow a judge at sentencing to take many other considerations in hand with the traditional considerations that include the severity of the misconduct, any prior misconduct, and the likelihood of future misconduct.

Friday, March 10, 2006


The purpose of a bond is to place money or property at risk so that the Defendant may remain free pending the resolution of his case. Upon release the Defendant must abide by any restrictions placed upon him by the magistrate, judge or probation office as the case proceeds thru the federal system or the case proceeds in the Pinellas Criminal Court Complex or in Tampa.

On Motion for a Reduction of Bond filed timely by a Clearwater Criminal Defense Attorney the court may insure the appearance of a Defendant with a signature bond based on a promise to pay if there is a nonappearance or a cash bond payed in advance of any appearance or with a property bond, also known as a secure bond.

In a typical case in the Federal District Court in Tampa a Federal Magistrate will look at the following factors to determine if bond should be reduced:
  1. Ties to the community. How long has the Defendant lived in the community? Does the Defendant have employment, own property and have family ties to the area?
  2. Risk of flight. Is there a likelihood that the Defendant will appear for his trial? Note that in Federal cases there is an automatic presumption of flight risk when the Defendant is charged with a significant amount of drugs. For example, if one is charged with Trafficking in Methamphetamine or Trafficking in Cocaine, a minimum mandatory jail sentence is triggered as is the rebuttable presumption that the Defendant will attempt to flee.
  3. Risk of danger to the community or to the victim of the crime, if any.
Surprisingly, the strength or weakness of the Government's case is ordinarily not a factor in determination of bond. Yet by timely demanding a Preliminary Hearing immediately before the detention hearing the Government will be forced to place unprepared testimony of the case agent subject to cross-examination before the Federal Magistrate to establish whether there is in fact Probable Cause to even be holding the Defendant.
This will rarely if ever free the Defendant,who after all, has been indicted by a Grand Jury that presumably has heard relevant evidence, but it may tend to show subtle problems with the charge.
For example, I once represented a too-trusting young middle class Canadian lady whose life was turned upside down when she was charged with Trafficking Drugs while she was in Tampa, Florida on vaction.
Under cross-examination during the Preliminary Hearing in the Middle District of Florida in Tampa that a Clearwater Criminal Federal Defense Lawyer demanded, the unprepared Case Agent from DEA testified that my client was actually not in the room when her boyfriend sold the drugs to a wired Confidential Informant. My client had gone into the bathroom. The Magistrate was clearly troubled and said so on the record, but could not reduce the bond; however, eventually the Government was forced to reduce the charge.

Wednesday, March 08, 2006


Mandatory minimum drug sentences not only destroy those who are sentenced but corrupt those who must determine when they will be applied. Because the Florida legislature has taken the decision-making process away from Florida judges, the decisions have been left to prosecutors or those given that authority by elected prosecutors. Your Clearwater Criminal Defense Attorney strongly believes that Florida Judges, not Florida prosecutors should be given discretion to go below mandatory minimum sentences, below I'll show you why.

While I was a prosecutor in the Pinellas Sixth Judicial Circuit in Clearwater, a man named Murphy who was assigned the tasks of watching the attorneys at trial, evaluating their performances as well as determining when the state attorney's office would amend the charging document to allow a judge to give a sentence below the the minimum mandatory range.

Murphy was trusted as the often green behind the ears attorneys in the office not only because he was the chief investigator, but because he had a long storied career of excellent service, judgement and achievment. I liked him a great deal. He was an affable irishman, always laughing, always ready to slap you on the back at the end of a successful drug trial. He'd always be there at sentencing to make sure neither you nor the judge dropped the ball and later he'd be at the bar buying a celebratory drink or two.

One day a young couple was arrested by the Pinellas County Sheriff's Office for forging scripts also known as prescription fraud for oxycodone they'd become addicted to after a horrific automobile accident a year or so before. The handful of pills triggered three year minimum mandatory sentences for each of them.

Not surprisingly Murphy recommended probation rather than jail in their cases. Without his recommendation neither the judges nor the attorneys would have been able to go under the three years.
Murphy had set up a hotel encounter with the wife, a quid pro quo for the mercy only he could give. Just as Murphy had taken off his clothes they heard a pounding at the door, the wife unlocked it and the husband burst into the room breaking things up.

Later taped conversations by FDLE and the FBI revealed that Murphy - the chief investigator and the man in charge of who could get less than the harsh drug sentence statutory mandatory - continued to solicite sex for a reduction of the sentence even after the hotel incident.

This obvious Prosecutorial Misconduct with the ensuing whirlwind of publicity aged Murphy and may have helped usher in Pinellas County Drug Court. Clearwater Criminal Lawyers will never forget seeing this once respected man humbled, jobless and ruined. At his sentencing with hands shaking, his health broken as he sat in his second-hand wheelchair with torn leather begging the judge to give him a period of probation rather than the lockup he surely deserved--- where those prisoners serving their dull dark minimum mantory years would certainly have murdered him...

Monday, March 06, 2006


You might think Florida drug laws for hard street drugs like cocaine, methamphetamine, heroin are the only drugs where Defendant receive significant punishment, but even drugs like oxycodone from prescription fraud and prescription drug abuse often trigger mandatory minimum sentences for surprisingly small amounts of the drug. A mandatory minimum sentence is one in which the Judge overseeing a criminal case has no discretion other than to sentence the Defendant to a significant amount of time over objections and hopes for leniency from your favorite Clearwater Criminal Defense Attorney.
Many years ago in the mid 1980's when I was a prosecutor in Pinellas County, Florida, I handled what was then the first major twenty-five year mandatory minimum heroin case in the state of Florida. Yet there was no confidential informant, no wire tap, no large scale law enforcement investigation in apprehending the defendant.
Instead a car was stopped by officers in St. Petersburg, Florida late at night with an inoperative tail light. The driver and passengers were told to get out of the vehicle.
Incident to a search of the vehicle a small packet of heroin was found under the seat. Everyone in the car was arrested and eventually everyone pled to three years - a reduced offer made by the State Attorney's office because no one had yet been convicted of a twenty-five year minimum mandatory sentence in Florida. Everyone pled that is, but one man, a man who was in the back seat, passenger side of the vehicle.
I will never forget at trial in the ugly gray Criminal Court Complex in Clearwater holding the neatly tight-wrapped heroin foil packet in front of the jury and thinking even as I was speaking to them - urging them to convict because the Defendant was in close proximaty to the drugs and therefor must have known about it - that it was a very, very small packet that seemed to weigh so little.
Yet the jury did convict. The next day at sentencing the wise old (he's no longer on the bench where judges are always young when writing about them) judge said he'd been unable to sleep the night before. He granted a new trial to avoid having to sentence the man to the twenty-five year minimum mandatory sentence.
With the judge's prodding three years was again offered for him to plea. He refused. I took it to trial again, convicted him a second time. On the spot the judge sentenced him to a twenty-five year prison term.
I've often wondered how the judge slept that night and suppose that like me he had little problem. The very impersonal nature of the judicial system helps to forestall any notions of absolute justice instead merely fostering a fealty to the Law even when the results are unjust. Are we really better off as a society because that the young man spent the better part of his life in jail?
Yet even more surprising than the harshness of the law in Florida for street drugs is that the drug laws are no less brutal when the drug is obtained through uttering a fraudulent prescription or by forging a script at a local pharmacy. The minimum mandatory applies to many of these drugs, some with common brand names such as tylenol 3 that may unexpectedly contain codeine or one of the many other pain killers not available directly over the counter. Offenders often find themselves looking at three, fifteen or twenty-five year mandatory minimum sentences with Clearwater Criminal Defense Lawyers doing whatever is possible to find ways around the harsh sentences.